The ground of it, however, is that the parties constituted the postoffice their agent, so that no direct question of the law of evidence is involved. By some statutes, this sort of proof has been made conclusive in certain cases where the letter is registered (), and in some even where it is not (y). Presumptions of this kind are also made from the course of business in private offices; such as those of merchants (2), solicitors (a), &c.

§ 404. There are several other presumptions drawn from the usages of trade. Thus, where a partnership is found to exist between two persons, but there is no evidence to show in what proportions they are interested, it is presumed that they are interested in equal moieties (b). So, where a factor in this country buys or sells in his own name for a foreign principal, the right to sue, and the liability to be sued on the contract, are presumed to be exclusively in the factor, and not in the principal (c). So, bills of exchange and promissory notes are presumed to have been given for consideration (d). And a bill of exchange, in the absence of proof to the contrary, is presumed to have been accepted within a reasonable time after its date, and before it came to maturity (e).

(x) See 6 & 7 Vict. c. 18, ss. 100 & 101; 28 Vict. c. 36, s. 9, &c.

(y) See 19 & 20 Vict. c. 47, ss. 53, 54; 25 & 26 Vict. c. 89, ss. 62, 63, &c.

(2) Hetherington v. Kemp, 4 Camp. 193; Toosey v. Williams, 1 Mood. & M. 129; Hawkes v. Salter, 4 Bingh. 715; Pritt v. Fairclough, 3 Camp. 305; Hagedorn v. Reid, Id. 379.

(b) Farrar v. Beswick, 1 Moo. & R. 527, per Parke, B.

(c) Russell on Merc. Agency, 2d ed., 200, 233.

(d) Byles on Bills, 2 and 108, 8th ed. (e) Roberts v. Bethell, 12 C. B. 778. For other instances see Carter v. Abbott, 1 B. & C. 444; Houghton v. Gilbart, 7 C. & P. 701; Leuckhart v. Cooper, 7 C. (a) Doe d. Patteshall v. Turford, 3 B. & & P. 119; Cunningham v. Fonblanque, 6 Ad. 890.

C. & P. 44.

SUBSECTION VII.

PRESUMPTION OF THE CONTINUANCE OF THINGS IN THE STATE IN WHICH THEY HAVE ONCE EXISTED.

§ 405. IT is a very general presumption, that things once proved to have existed in a particular state are to be understood as continuing in that state until the contrary is established by evidence, either direct or circumstantial.1 Thus, where seisin of an estate has been shown, its continuance will be presumed (ƒ); as also will that of a parochial settlement (g), of the authority of an agent (h), &c. And there are several instances to be found in the books, where this presumption has been held stronger than the presumption of innocence, or than presumptions derived from the course of nature. Thus, on an indictment for libelling a man in his capacity of public officer, on proof of the prosecutor having held the office previous to the publication of the libel, his continuing to do so was presumed (i). And it is said that, where adultery had been proved, its continuance will be presumed while the parties live under the same roof (k). So, although the law in general presumes against insanity, yet, where the fact of insanity has been shown, its continuance will be presumed; and the proof of a subsequent lucid interval lies on the party who asserts it (1).2

(f) Wrotesley v. Adams, Plowd. 193; Smith v. Stapleton, id. 431; Cockman v. Farrer, T. Jones, 181.

(g) R. v. Tanner, 1 Esp. 304. (h) See Smout v. Ilbery, 10 M. & W. 1. And see as to presumption of continuance

of residence, and of minority, in the U. S. A., Morgan's Best, p. 687.

350.

(i) R. v. Budd, 5 Esp. 230.

(k) Turton v. Turton, 3 Hagg. N. R.

(1) See Banks v. Goodfellow, L. Rep.,

1 See § 296, n. 1, B. V. (c), supra. Wilkins v. Earle, 44 N. Y. 172; Farr v. Payne, 40 Vt. 615; Plank Road Co. v. Webb, 27 Ala. 618; Brown v. King, 5 Metc. 173, acc. 2 Saxon v. Whitaker, 30 Ala. 237; Breed v. Pratt, 18 Pick. 115; Ballew v. Clark, 2 Ired. (N. C.) L. 23; Titlow v. Titlow, 54 Pa. St. 216; Ripley v. Babcock, 13 Wisc. 425, acc.

§ 406. There are two particular cases which will require special consideration namely, the presumption of the continuance of debts, obligations, &c., until discharged or otherwise extinguished; and the presumption of the continuance of human life. With respect to the former of these, -a debt once proved to have existed is presumed to continue, unless payment, or some other discharge, be either proved or established by circumstances (m). A receipt under hand and seal is the strongest evidence of payment, for it amounts to an estoppel, conclusive on the party making it (n); but a receipt under hand alone (o), or a verbal admission of payment (p), is in general only prima facie evidence of it, and may be rebutted. Of the presumptive proofs of payment, the most obvious is that no demand has been made for a considerable time; and previous to the 3 & 4 Will. 4, c. 42, s. 3 (q), the courts had, by analogy to the Statute of Limitations, established the artificial presumption, that where payment of a bond or other specialty was not demanded for twenty years, and there was no proof of payment of interest, or any other circumstance to show that it was still in force, payment or release ought to be presumed (r). Thus, in Colsell v. Budd (s), it was laid down by Lord Ellenborough, that "after a lapse of twenty years a bond will be presumed to be satisfied; but there must either be a lapse of twenty years, or a less time coupled with some circumstance to strengthen the presumption." So, the fact of payment may be presumed from any other circumstance which renders that fact probable (t); as, for instance, the settlement of accounts subsequent to the accruing of the debt, in which no mention is made of it (u).

5 Q. B. 549, 570; Butl. Co. Litt. 246 b, note (1); Gresl. Ev. in Eq. 368; Att.-Gen. v. Parnther, 3 Bro. C. C. 441; White v. Wilson, 13 Ves. 88.

(m) Jackson v. Irvin, 2 Camp. 50. Also in the Roman Law, Cod. lib. 4, tit. 19, l. 1.

(n) Gilb. Evid. 158, 4th ed.

debt or scire facias upon any recognizance, shall be commenced within twenty years after the cause of action, but not after.

(r) Oswald v. Legh, 1 T. R. 270; Washington v. Brymer, Peake's Ev., App. xXV. (s) 1 Camp. 27. See Oswald v. Legh, 1 T. R. 270.

(1) 3 Stark. Ev. 823, 3d ed. See Coo

(0) 1 Greenl. Ev. §§ 212 and 305, per v. Turner, 2 Stark. Ev. 497; Lucas v. 7th ed.

(p) Tayl. Ev. §§ 171 and 788, 4th ed. (4) Which enacts, that all actions for debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of

Novisilienski, 1 Esp. 296; Sellen v. Norman, 4 C. & P. 80; Pfiel v. Vanbatenberg, 2 Camp. 439.

(u) Colsell v. Budd, 1 Camp. 27. See Dig. lib. 22, tit. 3, 1. 26, referred to ante, § 320.

1 Jackson v. Wood, 12 Johns. R. 242; Bird v. Inslee, 23 N. J. Eq. 363; Reed *. Reed, 46 Pa. St. 239, 242; Hale v. Pack's Executors, 10 W. Va. 145; Jarvis v. Albro, 67 Me. 310, acc.

So, where a landlord gives a receipt for rent due up to a certain day, all former arrears are presumed to have been paid; for it is likely that he would take the debt of longest standing first (x). So it is said, that where there is a competition of evidence on the question whether a security has or has not been satisfied by payment, the possession of the uncancelled security by the claimant ought to turn the scale in his favor, since in the ordinary course of dealing the security is given up to the party who pays it (y). And where land is conveyed to trustees in trust to pay debts, with remainder over, payment of the debts may be presumed from long possession by the remainderman, joined with other circumstances (z). Release as well as payment may be inferred from circumstances (a).

§ 407. On the same principle, although a revocation or surrender will not be presumed (b), it may be inferred from circumstances. In Doe d. Brandon v. Calvert (c), where, in answer to an ejectment, the defendant set up a mortgage term made to a stranger eighteen years before, and neither accounted for his possession of it, nor proved any payment of interest under the mortgage, and the judge advised the jury to presume a surrender of the mortgage term, the verdict was set aside by the court; and Mansfield, C. J. said, "There is no circumstance here to lead to the supposition that the deed was surrendered, except the eighteen years' time; if the deed had been assigned or surrendered, the instrument whereby it had been assigned or surrendered ought to be in the possession of the plaintiff. No reason is assigned to account why it should not be there; the question is therefore whether, from the circumstance of the eighteen years only, a surrender can be presumed. I have never known any case, in which a shorter time than twenty years has been held sufficient to ground the presumption of a surrender; and that is often too short a time, for many times receipts and documents may be lost. But it is enough to say, that twenty years is the time prescribed by act of Parliament as a bar to an ejectment, by analogy to which the doctrine of presumption has gone; and we might as well say a presumption might be raised by five years in assumpsit, or three years in trespass, as eighteen years in ejectment."

(x) Gilb. Ev. 157, 4th ed.

(y) Per Lord Ellenborough, Brembridge v. Osborn, 1 Stark. 374; and see Dig. lib. 22, tit. 3, 1. 24; and Mascard. de Prob. Concl. 477.

(z) Anon., Vin. Abr. Ev., Q. a. pl. 7.

(a) Washington v. Brymer, Peake's Ev., App. xxv.; Pickering v. Lord Stamford, 2 Ves. jun. 583; Reeves v. Brymer, 6 id. 516; Motz v. Moreau, 13 Moo. P. C. C. 376. (b) Moreton v. Horton, 2 Keb. 483. (c) 5 Taunt. 170.

§ 408. We next proceed to the presumptions respecting the continuance of human life. There is certainly, in the English law, no præsumptio juris relative to the continuance of life, in the abstract. The death of any party once shown to have been alive is matter of fact to be determined by a jury; and as the presumption is in favor of the continuance of life, the onus of proving the death lies on the party who asserts it (e).

§ 409. The fact of death may, however, be proved by presumptive, as well as by direct evidence (ƒ). When a person goes abroad, and has not been heard of for a long time, the presumption of the continuance of life ceases at the expiration of seven years from the period when he was last heard of (g). And the same rule holds, generally, with respect to persons who are absent from their usual places of resort, and of whom no account can be given (h). This is incorrectly spoken of in some books as a presumption of law (i): but it is in truth a mixed presumption, said to have been adopted by analogy to the statutes 1 Jac. 1, c. 11, s. 2 (k), and 19 Car. 2, c. 6, s. 2, the former of which exempts from the penalties of bigamy any person whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent him or herself, the one from the other, by the space of seven years together, in any parts within the King's dominions, the one of them not knowing the other to be living within that time; and the latter of which enacts, that persons in leases for lives, who shall remain beyond the seas, or elsewhere

(e) Smartle v. Penhallow, 2 Lord Raym. 999; Throgmorton v. Walton, 2 Roll. 461; Wilson v. Hodges, 2 East, 312.

(f) Thorn v. Rolff, Dy. 185 a, pl. 65; Anders. 20, pl. 42; Webster v. Birchmore, 13 Ves. 362.

(g) Per Lord Ellenborough, Doe d. George v. Jesson, 6 East, 80, 84; Hopewell v. De Pinna, 2 Camp. 113; Doe d. Banning v. Griffin, 15 East, 293; Lee v. Willock, 6 Ves. 605; Rust v. Baker, 8 Sim. 443; Dixon v. Dixon, 3 Bro. C. C. 510; Ommaney v. Stilwell, 23 Beav. 332; In the goods of How, 1 Swab. & T. 53.

(h) Doe d. Lloyd v. Deakin, 4 B. & A. 433. See the judgment of Lord Ellenborough in Doe d. George v. Jesson, 6 East,

85; Rowe v. Hasland, 1 W. Black. 404; Bailey v. Hammond, 7 Ves. 590; Doe d. France v. Andrews, 15 Q. B. 756.

(i) See the judgment in Nepean v. Doe d. Knight, 2 M. & W. 894.

(k) This statute was repealed by 9 Geo. 4, c. 31, s. 22, which exempts from the penalties of bigamy "any person whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time." This statute was in its turn repealed by 24 & 25 Vict. c. 95, and re-enacted by 24 & 25 Vict. c. 100, s. 57.

1 Ruloff v. People, 18 N. Y. 179, acc.